Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.

R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.

Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.

As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.

The Plain View Exception

Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.

This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 8/24/19 Zak Goldstein 8/24/19

PA Superior Court: Pointing a Gun at Someone May Be Aggravated Assault

The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, holding that the trial court properly found the defendant guilty of Aggravated Assault for the act of merely pointing a gun at the complainant. This is a poorly reasoned case which fails to follow the statutory language of the Aggravated Assault statute by allowing a conviction for Aggravated Assault even where the defendant did not actually do anything to try to cause serious bodily injury to the complainant.

The Facts of Miller

In Miller, the defendant became involved in a road range incident with the complainant. The complainant was driving home when he turned onto a street which was blocked by the defendant’s car. The defendant started yelling at the complainant, so the complainant pulled over and got out of his car. The defendant got out of his car, and the two began to argue. The defendant then went back to his car, retrieved a handgun, and pointed it at the complainant’s head with his finger on the trigger. He repeatedly stated things like “What’s your problem now, fucker? I got a gun. I’m going to kill you. I’m going to shoot you.” The complainant put his hands up defensively and said that was not necessary, and the defendant continued to threaten him and say that he should kill him.

At some point, one of the defendant’s friends came out of his house and began yelling at the defendant to put the gun away. He did, but then the two men argued some more. The defendant then started to go back to his car to get the gun again, but the complainant’s wife grabbed the gun and threw it. Police arrested the defendant, and he later yelled “I shoulda just fucking killed them. I shoulda just shot them.” He made a number of other similar statements which did not help his case.

The Criminal Charges

Prosecutors charged the defendant with Aggravated Assault, Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, Disorderly Conduct, and Harassment. He proceeded by way of jury trial and was found guilty of all charges. The trial judge sentenced him to four to ten years’ incarceration in state prison, and the defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that the evidence was insufficient to support the conviction for Aggravated Assault. Specifically, Aggravated Assault requires either that a defendant cause or attempt to cause serious bodily injury to the complainant. Here, the defendant did not cause serious bodily injury to the complainant because he did not do anything other than point the gun, but the Court found that the conviction could be upheld because he attempted to cause serious bodily injury.

Can you be convicted of a aggravated assault just for pointing a gun at someone?

Sometimes, depending on the facts. Here, the Court upheld the conviction. The Superior Court reasoned that for aggravated assault purposes, an attempt can be found where the accused who possesses the required, specific intent acts in a manner which constitutes a substantial step towards perpetrating a serious bodily injury upon another. Intent ordinarily must be proven through circumstantial evidence and inferred from acts, conduct or attendant circumstances.

Here, the Court found that the jury was free to believe that the defendant meant what he repeatedly said to the complainant: that he intended to shoot him. The threat, in conjunction with the act of pointing the gun at the complainant’s head, was sufficient to sustain the conviction for Aggravated Assault. Further, the encounter was only defused because the neighbor came out and began yelling at the defendant to stop, thus suggesting that the defendant may have carried through with the threat had someone else not intervened. Therefore, the Court upheld the conviction.

Potential Defenses to Aggravated Assault Charges for Pointing a Gun

This really is a bad opinion – Aggravated Assault requires an actual attempt to cause serious bodily injury, and here, it does not appear that anything actually happened which prevented the defendant from causing that serious bodily injury if he wanted to do so. Where a defendant shoots at someone and misses or points a gun at someone who flees and escapes, it may make sense for a court to find that there was sufficient evidence of Aggravated Assault. But where the defendant points the gun at someone and has every opportunity to shoot but does not do so, there should not be a conviction for Aggravated Assault.

In general, Pennsylvania case law now seems to hold that pointing a gun at someone may be Aggravated Assault where there are some intervening circumstances which arguably lead to the defendant deciding not to carry through with the threat. However, where the defendant does nothing more than point the gun at a complainant and then voluntarily stops on his or her own, there is still case law that supports the idea that this type of action should only be a Simple Assault. Unfortunately, Pennsylvania courts often do not take the fact that Aggravated Assault is a first-degree felony seriously enough. This makes it extremely important to hire an experienced criminal defense lawyer if you are facing charges or under investigation for assault.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.